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Nilsen v. United States

United States District Court, D. North Dakota

May 17, 2017

Jamie Nicol Nilsen, Petitioner,
v.
United States of America, Respondent. United States of America, Plaintiff,
v.
Jamie Nicol Nilsen, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          DANIEL L. HOVLAND, CHIEF JUDGE.

         The Defendant is serving a 180-month sentence for possession of a firearm and ammunition by a convicted felon. On June 7, 2016, the Defendant filed a “Motion to Vacate under 28 U.S.C. § 2255 (Johnson Claim).See Docket No. 53. The Defendant's motion is based on the United States Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). After an initial review of the motion, the Court ordered the Government to file a response. On July 5, 2016, the Government filed a response in opposition to the motion. See Docket No. 57. The Defendant filed a reply on July 18, 2016. See Docket No. 60. The Government filed a supplemental response on July 26, 2016. See Docket No. 64. The Defendant filed a reply to the Government's supplemental response on August 22, 2016. See Docket No. 65. For the reasons set forth below, the motion is granted.

         I. BACKGROUND

         On July 19, 2012, a federal grand jury indicted Nilsen on one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). See Docket No. 1. On October 30, 2012, Nilsen entered an open guilty plea to the one count indictment. See Docket No. 33. A sentencing hearing was held on April 24, 2013, at which time it was determined that because Nilsen had two prior burglary convictions, two prior criminal trespass convictions, and an aggravated assault conviction, he qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See Docket No. 47. The Court's finding that Nilsen was an armed career criminal triggered a mandatory minimum sentence of 180-months. The advisory Sentencing Guideline range was determined to be 168-210 months. See Docket No. 49. The Court sentenced Nilsen to the mandatory minimum 180-months in prison and 36 months of supervised release. See Docket No. 48. No appeal was taken.

         On June 7, 2016, Nilsen filed a Section 2255 motion citing the recent opinion of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015), as the basis for the motion. Nilsen contends that in the wake of Johnson, he no longer qualifies as an armed career criminal. Nilsen's prior convictions, which resulted from guilty pleas, are as follows:

1) Criminal Trespass, in Williams County (ND) District Court, Case No. 04-K-880, on or about December 20, 2004. Class C felony. This offense was committed on October 17, 2004. See Docket No. 36-1.
2) Burglary, Williams County (ND) District Court, Case No. 06-K-0986, on or about December 27, 2006. Class C felony. This offense was committed on August 8, 2006. See Docket No. 36-2.
3) Burglary, Williams County (ND) District Court, Case No. 06-K-0987, on or about December 27, 2006. Class C felony. This offense was committed on August 8, 2006. See Docket No. 36-3.
4) Aggravated Assault, Williams County (ND) District Court, Case No. 06-K-0951, on or about December 27, 2006. Class C felony. This offense was committed on August 8, 2006. See Docket No. 36-4.
5) Criminal Trespass, in Morton County (ND) District Court, Case No. 30-10-K-312, on or about April 26, 2010. Class C felony. This offense was committed on April 4, 2010. See Docket No. 36-5.

         The Government concedes the two criminal trespass convictions no longer qualify as “violent felony” convictions because the Johnson decision declared the residual clause of the ACCA to be unconstitutional, and the offenses do not qualify as a “violent felony” under any other section of the ACCA. The Government maintains Nilsen's two burglary convictions still qualify as 924(e) predicates under the “enumerated offenses clause” of the ACCA and his aggravated assault conviction qualifies under the “force clause” of the ACCA. The matter has been fully briefed and is ripe for a decision.

         II. STANDARD OF REVIEW

         “28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his ‘sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a “fundamental defect” resulting in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A 28 U.S.C. § 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A 28 U.S.C. § 2255 movant “must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is “intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343.

         In a case involving an ACCA conviction based on Johnson, “the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA.” Redd v. United States, No. 4:16-CV-1665, 2017 WL 633850, at *2 (E.D. Mo. Feb. 16, 2017) (quoting Hardman v. United States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016)). The movant need not show he was sentenced under the residual clause to maintain a Section 2255 claim under Johnson. United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (noting sentencing judges are not required to specify under which clause of 18 U.S.C. § 924(e)(2)(B) an offense qualified as a violent felony). A movant may rely on the new rule of constitutional law announced in Johnson if his sentence may have been predicated on the now void residual clause.

         On a Section 2255 motion, the determination of whether a prior conviction qualifies as a predicate violent felony under the ACCA is subject to de novo review. Winston, 850 F.3d at 683; In re Chance, 831 F.3d 1335, 1338-39 (11th Cir. 2016). The court's review is not constrained to the law as it existed when the movant was sentenced, but should be made with the assistance of binding intervening precedent which clarifies the law. In re Chance, 831 F.3d at 1340; Winston, 850 F.3d at 683-84 (applying intervening case law); Redd, No. 4:16-CV-1665, 2017 WL 633850, at *4 n. 3. (noting decisions which clarify or apply existing law or a settled rule apply on collateral review). The burden remains on the movant to show that his sentence, in the wake of Johnson, is no longer authorized by the ACCA. In re Chance, 831 F.3d at 1341.

         III. LEGAL DISCUSSION

         The ACCA's 180-month mandatory minimum penalty applies when a defendant has at least three prior felony convictions for a “serious drug offense” or a “violent felony, ” as defined in 18 U.S.C. § 924(e)(2). Absent the armed career criminal finding, the maximum sentence for being a felon in possession of a firearm is ten (10) years. See 18 U.S.C. § 924(a)(2). The ACCA defines “violent felony” as follows:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The portion of this definition in bold is known as the “force clause” or “elements clause.” The underlined portion of this definition is known as the “enumerated offenses clause.” The italicized portion is known as the “residual clause.”

         In Johnson, the United States Supreme Court held the residual clause of the ACCA was vague, and the application of the residual clause violates the Constitution's guarantee of due process. Johnson, 135 S.Ct. at 2563. The holding of Johnson applies retroactively on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). However, the holding in Johnson does not apply to the advisory federal Sentencing Guidelines. Beckles v. United States, 137 S.Ct. 886, 895 (2017) (holding the Sentencing Guidelines are not subject to a void for vagueness challenge under the Fifth Amendment Due Process Clause). Therefore, the residual clause no longer provides a basis for qualifying a prior conviction as a “violent felony” under the ACCA.

         The crimes listed in the enumerated offense clause refer to the generic version of the offense, and not to all versions of offenses. See Taylor v. United States, 495 U.S. 575, 598 (1990); Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). In order to determine if a prior conviction qualifies, courts apply the “categorical approach.” Taylor, 495 U.S. at 600; Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). The categorical approach requires comparing the elements of the offense of conviction to the elements of the generic offense. Taylor, 495 U.S. at 600; Descamps, 133 S.Ct. at 2281. The particular facts underlying the prior conviction are not considered. Taylor, 495 U.S. at 600. The prior conviction qualifies only if the elements of the offense are the same or narrower than ...


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